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Nyiramahoro Tuyisenge is one of the approximately 600 Congolese refugees who have finished undergoing IOM’s pre-departure health assessment in preparation for their resettlement to the United States.

It has been 17 years since threats from the militia in her village in the Democratic Republic of Congo sent her running into neighbouring Rwanda. The situation in her rural village has never stabilized and life at the camp has been tough, especially for her three children.

“It is so hard to make appropriate food for babies in the camp. The tents get really cold when it rains and my children often get sick. I’m so worried about them,” said Nyiramahoro as she held her new born baby.

“I’m very happy to go to the United States. I expect that I will have access to quality food, education and health.” Nyiramahoro said, full of hope and excitement for the new life ahead.

Every year, IOM facilitates movements for thousands of refugees who have been accepted for third country resettlement. The resettlement programme offers a durable solution for refugees who are unable to return to their country of origin for fear of continued persecution and do not have the option to stay in their country of asylum.

The US government funds IOM to conduct these health assessments and to organize the transportation of refugees to the United States.

A 29- year-old Afghan man is in Gulating Appeals court sentenced to 15 years in prison for the murder of a Somali asylum seeker at New Paradise asylum seekers camp in Bergen last year .

The killer must also pay 800,000 kroner in compensation to the bereaved family .

Mohamoud Ahmed ( 45 ) from Somalia died on the 22 May last year after being stabbed 24 times . The Afghan man claims that he killed the Somali man in self-defense because he was attacked first , but the jury did not believe him.

Analysts say the Afghan may have killed in desperation after realising that the Norwegian authorities had denied him asylum in the country. He will be deported to his home country Afghanistan after serving his sentence.

Many Rwandan refugees have lived in host countries for decades (file photo)

KAMPALA/JOHANNESBURG, – The future of tens of thousands of Rwandan refugees living in Africa remains uncertain nearly two weeks after the 30 June deadline recommended by the UN Refugee Agency (UNHCR) for the discontinuation of their refugee status.

UNHCR has recommended countries invoke the “ceased circumstances”clause for Rwandans who fled their country between 1959 and 1998. The cessation clause forms part of the 1951 Refugee Convention and can be applied when fundamental and durable changes in a refugee’s country of origin, such that they no longer have a well-founded fear of persecution, remove the need for international protection. Both UNHCR and the Rwandan government have pointed out that since the end of the civil war and the 1994 genocide, Rwanda has been peaceful, and more than three million exiled Rwandans have returned home.

However, many of the estimated 100,000 Rwandans who continue to live outside the country – mainly in eastern, central and southern Africa – remain unwilling to repatriate, citing fear of persecution by the government. Refugee rights organizations have also warned that human rights abuses by the current government have caused a continued exodus of Rwandan asylum seekers.

“We have been told time and again that Rwanda is safe and there might be some truth in that. However, one wonders why the call for cessation is happening while there are still people who are seeking asylum,” Dismas Nkunda, co-director of the International Refugee Rights Initiative, told IRIN.

Differing views on protection

So far only four countries in Africa – Malawi, the Republic of Congo, Zambia and Zimbabwe – have followed UNHCR’s recommendation to invoke the cessation clause, a fact that, according to Nkunda, “speaks volumes” about how different African countries view this group’s need for protection.

In an article in the July issue of a newsletter produced by the Fahamu Refugee Programme, a refugee legal aid group, John Cacharani and Guillaume Cliche-Rivard accused UNHCR of pressuring states to follow its recommendation, “holding hostage the fate of more than 100,000 Rwandan refugees who, of their own volition, have decided not to repatriate, yet continue to fear the end of their international protection.”

“One wonders why the call for cessation is happening while there are still people who are seeking asylum”

But in response to questions from IRIN, Clementine Nkweta-Salami, UNHCR regional representative for southern Africa, emphasized, “It is the responsibility and prerogative of states to declare the cessation of refugee status.” She said UNHCR’s role was only to make a recommendation based on its analysis of conditions in the country of origin and how they relate to the refugees’ reasons for flight.

That only four states had agreed to implement cessation as of 30 June did not in any way indicate that UNHCR’s recommendation was premature, she insisted. At an April 2013 meeting of host states held in Pretoria, “some states underscored that, for various legal, logistical, practical or other considerations, they are not in a position to apply the cessation clauses by 30 June 2013. Others have specified that, for the time being, they will concentrate on taking forward other components of the [comprehensive durable solutions] strategy, namely voluntary repatriation and local integration”.

Preparing for returnees

Meanwhile, Rwandan officials say the country is prepared to receive therefugees, and has developed a comprehensive plan to repatriate and reintegrate returnees. So far this year, an estimated 1,500 Rwandans have returned home following government-operated “go-and-see” programmes.

“The conditions that forced them to flee no longer exist,” Rwandan High Commissioner to Uganda, Maj Gen Frank Mugambagye, told IRIN. “The government has established three transit centres which are well equipped with shelter, education and health services. These people will be given packages for three months. We have mobilized the local authorities to receive and help them reintegrate into the communities.”

He added that for Rwandans seeking local integration in host countries rather than repatriation, the government will issue national identity cards and passports that will allow them to retain their nationality.

IRIN spoke to government officials and UNHCR representatives in several of the African countries that are hosting significant numbers of Rwandan refugees to find out how they are handling the cessation clause.

Countries invoking the clause

Malawi

Although Malawi is among the countries said to be invoking the cessation clause, the process is still in its early stages. According to George Kuchio, UNCHR representative for Malawi, the first step of informing the 660 refugees covered by the clause of their right to apply for exemption has just been completed, and the government has yet to decide what options it will offer for local integration.

“If there are people who still have compelling reasons for not returning, they’ll be given the opportunity to have their say,” Kuchio told IRIN.

However, the principal secretary in the Ministry of Foreign Affairs and International Cooperation, Besten Chisamile, was quoted in the local media as saying, “The situation in Rwanda stabilized long ago, and there is every reason for the remaining ones [refugees] to return to their home. We are working with UNHCR on ensuring we repatriate them.”

Malawi is host to a further 500 Rwandan asylum seekers whose refugee status has yet to be determined but who are unlikely to be covered by the cessation clause.

Republic of Congo

In June, the Republic of Congo announced that it would invoke the cessation clause for the 8,404 Rwandan refugees it hosts. They will now have to choose between voluntary repatriation, naturalization or applying for exemption.

“Those who fail to choose one of these options will be subject to the laws pertaining to foreigners’ entry, residence and departure,” said Chantal Itoua Apoyolo, director of multilateral affairs in the Ministry of Foreign Affairs and Cooperation.

Juvenal Turatsinzé, 49, who is among 2,500 Rwandan refugees living in Loukolela, in the northern Cuvette region, said: “We’ve been worried since hearing about the loss of our status. We’d love to go back to Rwanda, but the conditions that would allow us to do that willingly are not yet in place.

“There are often arbitrary arrests in Rwanda. There is no freedom of expression, no democracy. We don’t think the time is right for voluntary repatriation… There are no security guarantees there.”

He added, “I have already put in my request for naturalization as a Congolese citizen.”

Zambia

Zambia hosts 6,000 Rwandan refugees, about 4,000 of whom are covered by the cessation clause. According to Peter Janssen, a senior protection officer with UNHCR, the majority of these have applied for exemption, but most have been rejected. “Officially their refugee status has ceased, but the government has made it known that there will be a possibility for people to acquire an alternative status,” said Janssen.

“That still needs to be fine-tuned, but it is positive because, until a while ago, it looked like people would be left without a status and have to return to Rwanda.”

Zimbabwe

Zimbabwe, which is also following the recommendation to invoke the cessation clause, is further along with the process.

Prior to 30 June, 72 cases comprising over 200 individuals who left their country before 1999 were identified as falling within the scope of the clause, out of about 800 Rwandan refugee and asylum seekers living in the country. Those unwilling to repatriate who qualify for local integration, either through marriage to a local or through employment in certain professions, such as lawyers, doctors and teachers, have been encouraged to apply for permanent residence or work permits. However, they cannot be issued permits until they are in possession of Rwandan passports, which the Rwandan government have yet to issue.

The majority who do not qualify for local integration but do not want to return home have already applied for exemption from the cessation clause. According to Ray Chikwanda, a national protection officer with UNHCR in Zimbabwe, only six out of the 60 cases that applied were successful. Those who were rejected have been encouraged to appeal.

“Our reading of the situation is that until there is a political consensus in the region [about invoking the cessation clause], these appeal decisions are unlikely to be released,” said Chikwanda.

Countries not invoking the clause

Democratic Republic of Congo

The government of the Democratic Republic of Congo (DRC) has said it will not immediately invoke the cessation clause for the estimated 47,500 Rwandan refugees it hosts, but will instead adopt a phased approach.

Rwandan refugees will first be identified, registered and asked if they want to return. Following a meeting in October, a repatriation plan will be drawn up. Julien Paluku, governor of North Kivu Province, where most of the Rwandan refugees have settled, told the Associated Press that refugees who do not want to return home will be allowed to apply either for a residence permit or for Congolese nationality, which may be granted on a case-by-case basis.

UNHCR has helped some 8,000 Rwandans return home from DRC since 2012 and says it will continue to assist with repatriation.

Uganda

Out of 14,811 Rwandan refugees living in Uganda, about 4,100 individuals fall within the scope of the cessation clause. However, the government has not invoked cessation because ambiguities in the country’s Immigration Act and Constitution would hinder local integration – an alternative to voluntary repatriation that host states are supposed to make available as part of the comprehensive solutions strategy.

For example, Article 12 of the Constitution bars the children of refugees from qualifying for citizenship, while sections of the Immigration Act effectively preclude refugees from qualifying for permanent residence or work permits.

“The government of Uganda has declared that, pending the resolution of the [legal] ambiguities and the charting of a way forward towards implementing local integration and alternative legal status, they will not be invoking the ceased circumstances clause,” Esther Kiragu, UNHCR assistant representative for protection, told IRIN. “They will, however, announce a date for invocation in due course once the road map is clearly drawn.”

South Africa

At a ministerial meeting convened by UNHCR in Pretoria in April 2013, South Africa’s Minister of Home Affairs Naledi Pandor said, “The position of the UNHCR in relation to Rwanda has created anguish and uncertainty among the refugee community in South Africa”, suggesting that much work remained to be done to clearly articulate the reasons for the clause being invoked.

The South African government has since informed UNHCR that it will conduct its own research into existing conditions in Rwanda and consult extensively with the local Rwandan community before making a decision on invoking the cessation clause.

A local Rwandan refugee leader, who did not wish to be named, commended South Africa’s Department of Home Affairs for “welcoming Rwandan refugee leaders, listening to their concerns and fears of being returned to Rwanda, and sharing with refugees the government of South Africa’s position around the cessation clause”.

“LGBTI asylum seekers and refugees face a range of threats, risks and vulnerabilities throughout the displacement cycle,” Volker Türk, director of international protection at the UN Refugee Agency (UNHCR), told IRIN from Geneva.

“And while the world has come a long way since first recognizing asylum claims based on sexual orientation and gender identity in the 1980s, residual factors ranging from criminalization to disbelief result in LGBTI people suffering at the hands of a variety of actors as they flee oppression and seek safety,” he said.

According to UNHCR, targeting people based on real or perceived sexual orientation and gender identity for persecution, discrimination, and harassment can stem from the belief that they are encouraging unwanted or unnatural social change.

LGBTI people leave home for the same reasons as everyone else: to flee war, persecution, and oppression; to seek stability, education, employment, and freedom. In situations of upheaval or conflict, sexual and gender minorities have become targets for scapegoating or “moral cleansing” campaigns, compounding the inherent vulnerability created by unrest, activists say.

LGBTI persecution

LGBTI people experience torture, violence, discrimination, and persecution in countries around the world, sometimes deliberately carried out by the state and often conducted with impunity.

Homosexual acts are punishable with the death penalty in five countries (Iran, Mauritania, Saudi Arabia, Sudan and Yemen), as well as some parts of Nigeria and Somalia, the International Lesbian and Gay Association, the oldest and only membership-based LGBTI organization in the world, reported in 2012.

According to research by Human Rights Watch, gay Iranians are fleeing, frequently to Turkey, due to the state-sponsored persecution they face at home, while thousands of LGBTI people have sought international protectionin Europe in recent years on the basis of their sexual orientation and gender identity.

And while few countries keep LGBTI-specific data, Norway and Belgium, which both track asylum decisions based on sexual orientation and gender identity, have shown a steady uptick in recent years.

From 2008-2010, LGBTI asylum decisions in Belgium increased from 226-522. During the same period in Norway they increased from 3-26.

But information about abuses against LGBTI people – called “Country of Origin Information” (COI) in the asylum process – can be scant in hostile countries, argued Christian Pangilinan, a Tanzania-based refugee lawyer cited in the Forced Migration Review.

For transgender people, COI can mislead agencies, such as in Iran where authorities “allow transsexual surgery as a forced method of preventing homosexuality rather than supporting trans identities,” according to a gender expert’s FMR chapter.
Crossing borders of geography and identity

The multiple document checks migrants might encounter can be particularly difficult for transgender or gender-variant people. While international standards for travel documents officially recognize three genders – marked M, F, or X – only a handful of countries have incorporated the third category, meaning that high-security travel environments, such as airports oremergency residential camps, can threaten humiliation or exclusion to people whose gender identity or expression is different from what is indicated by their documents.

Sexuality and gender are nuanced personal matters. According to research by psychologists, some individuals may have had limited experience expressing or experiencing his or her deeply-felt sexual orientation or gender identity, and may outwardly appear very different than how he or she feels – to the extent of even being in a heterosexual relationship.

With the asylum process taking increasingly extended periods of time, some may start the migration or asylum process with one identity, and change over time, complicating the matter both personally and administratively and exposing the individual to further discrimination or ill-treatment.

UNHCR’s guidelines for claims to refugee status based on sexual orientation and gender identity take the progressive step of acknowledging that “sexual orientation and gender identity are broad concepts which create space for self-identification” which may“continue to evolve across a person’s lifetime”.
Nonetheless, according to UN Office of Drugs and Crime guidelines, discriminatory attitudes regarding sexual orientation and gender identity can mean the credibility of LGBTI people is dismissed by authorities.

“That no one should be compelled to hide, change or renounce his or her identity in order to avoid persecution is a central tenet of refugee law, and this applies to sexual orientation and gender identity on equal footing with other claims,” UNHCR’s Türk told IRIN.

“There is no space for decision-makers determining refugee status to expect them to conceal who they are.”

Safety and security

“There is harassment in the camp against us, sometimes beatings,”said Yoman Rai, a 19-year-old Bhutanese refugee living in a camp in Nepal. “We have a protection unit and complaint mechanism, but we are still facing problems,” he said, adding that just last month a transgender woman was beaten by other people in the camp.

Security in refugee camps is complicated and contingent on numerous, unpredictable factors. For members of the LGBTI community, vulnerabilities are exacerbated. Sexual abuse is common, but often goes unreported because the right questions are not being asked, and because survivors of sexual violence are reluctant to report events that will “out” them to legal authorities.

Explained Rai: “Many Bhutanese are not `out’ to anyone except for the outreach workers because they still believe being LGBTI will put them in danger and negatively affect their resettlement process,” adding that the outreach educators’ network was operated by a Nepalese LGBTI rights NGO.

Emergency shelter settings -such as relief camps or refugee housing- posespecific challenges for transgender people. Access to male-female gender-segregated facilities, such as dormitories or bathrooms, can be perilous. New research is exploring how immigration detention centres can respect and protect LGBTI residents, a US-based prisons expert explained in FMR.

For LGBTI migrants who end up in urban areas, research has shown that cities can be unwelcoming and unfamiliar and access to basic social services limited by scant local resources, exclusion of foreigners, or limitations to access including finances, language, and cultural barriers.

“The single most threatening factor for these migrants is isolation,”said Neil Grungras, executive director of the Organization for Refugee Asylum and Migration (ORAM), a leading advocacy group for refugees fleeing persecution due to sexual orientation or gender identity.

With UNHCR data showing the average major refugee situation lasting 17 years, these circumstances can impinge on a significant portion of an individual’s life.

“It is critical that refugee organizations identify what the best ways of offering protection are, such as providing access to safe shelter, requesting expedited resettlement, and, if possible, working with the police and refugee communities to address specific threats of violence,” said Duncan Breen, a senior associate in the refugee protection programme at Human Rights First.

Evolving frameworks

Recent UN reports and statements demonstrate increased international attention to the human rights of LGBTI people.

On the programme level, agencies have begun to adjust to include considerations of sexual orientation and gender identity.

For example, the International Organization for Migration (IOM) is implementing a “safe space” project for refugees at its four US Refugee Admissions Program Resettlement Support Centers.

Jennifer Rumbach, IOM resettlement support centre manager for South Asia, told IRIN the programme is designed to help LGBTI refugees at “every step along the way – whether during counselling, interviews, orientations, travel, or post-arrival…

“Disclosing sexual orientation and gender identity overseas works to the refugees’ benefit because it ensures we can provide appropriate and respectful services, ask questions that are critical to their resettlement experience, and try to get them any special help they need while they wait to be resettled,” she explained.

But ORAM’s Grungras warned:“We have to be extra careful to talk with refugees and migrants on their own terms – to understand them as they understand themselves, and not label them as“LGBTI” just because it fits our programmes.”

In spite of challenges such as a dearth of respectful terms used in some languages referring to sexual and gender minorities, IOM’s programmes also attempt to engage with local terminology.

“While it’s important for staff to understand sexual orientation and gender identity terms used by the international community, we make special efforts to use relevant and respectful local terminology in our signs, handouts and interview and counselling scripts,” said Rumbach.

Supporting and protecting LGBTI people as they migrate requires nuance, sensitivity, and an appreciation of evolving identities, legal frameworks, and programmatic potential.

HIGHLIGHTS

“Cut and paste” decisions are often based on outdated country of origin information

Government has yet to accept UNHCR’s offers of technical assistance and training

JOHANNESBURG, – South Africa attracts the largest number of asylum seekers in the world, but grants refugee status to very few of them, ranking only thirty-sixth in the world for the size of its refugee population, which the UN Refugee Agency (UNHCR) puts at about 58,000.

The Department of Home Affairs, the government ministry tasked with managing the asylum system, approved just 15.5 percent of the applications it processed in 2011, less than half the global average recognition rate of 38 percent, according to UNHCR.

Researchers and activists have repeatedly pointed to serious flaws in the country’s refugee status determination process, including the lack of individualized assessments, misapplications of both local and international refugee law, and high levels of corruption among Home Affairs officials. The government’s routine response has been that its asylum system is simply overwhelmed by the sheer number of applications it receives.

In fact, although South Africa still receives the largest number of asylum applications in the world, the number of claims registered has dropped by more than half, from 222,000 in 2009 to 107,000 in 2011, possibly the result of the increased number of asylum seekers being turned away at the country’s borders and from its refugee reception offices in recent years.

Despite the reduced demand, a 2012 study by Roni Amit of the African Centre for Migration and Society (ACMS) at Witwatersrand University in Johannesburg, found that the problems with refugee status determination processes, identified in an ACMS study two years earlier, had not diminished.

Amit reviewed 240 refugee decisions issued in 2011 and found, among other things, that refugee status determination officers (RSDOs) had routinely failed to thoroughly investigate country of origin conditions and misapplied fundamental aspects of refugee law. South Africa’s 1998 Refugees Act established six grounds for persecution that qualify victims for refugee protection, but Amit found that RSDOs limited their definition of persecution to political grounds and only considered a history of persecution as evidence of future risk. A woman who fled Kenya to avoid forced circumcision, a Ugandan man who fled persecution for being a homosexual, and a man who was targeted by the police in his country for exposing mineral trafficking were all rejected.

Amit concluded that “South Africa’s asylum system exists only to refuse access to the country and makes no attempt to realize the goal of refugee protection… [but] functions solely as an instrument of immigration control”.

Bias, corruption

Although part of the problem appears to be insufficient training of RSDOs and an unmanageable workload that requires them to make at least 10 refugee decisions a day, Amit also described “a general anti-asylum seeker bias that excludes the majority of claims”.

“It’s this general idea you hear coming out of Home Affairs all the time that the majority of people are economic migrants and they’re abusing the asylum system,” Amit told IRIN. She added that refugee rights are not a popular cause in South Africa, where asylum seekers and refugees are just as much a target for xenophobic attitudes and violence as other foreign nationals, particularly if they live in impoverished areas where they are viewed as competing with locals for scarce jobs and resources.

The Department of Home Affairs did not respond to repeated attempts by IRIN to ask about its refugee status determination processes, but Amit’s findings are borne out by the experiences of several asylum seekers IRIN interviewed.

Caroline* fled South Kivu Province, in the Democratic Republic of Congo, after her husband was murdered by rebels and she was held captive in a rebel stronghold and repeatedly raped for a month. She was denied refugee status in 2010, after an interview at the refugee reception office in Pretoria that lasted just 30 minutes. When she told the interviewer about the conflict in South Kivu, he did not seem to believe her. “I wasn’t feeling well, I was shaking – that’s when he stopped the interview,” she told IRIN. “There were more things I was supposed to tell him, but he said, ‘As you can see, there are many people waiting.’

“My interpreter said, ‘Whatever your story, they’re not going to give you anything unless you pay money’, but I had nothing; I’d just arrived in the country.”

Gertrude Nkey, 51, also fled the conflict in Kivu, leaving behind her husband and six children after an attack that has left her traumatized. “I didn’t decide to leave Congo, I just ran and people helped me and I found myself here in South Africa,” she told IRIN.

It took four visits to the refugee reception office in Durban before she was finally admitted to the building, only to be sent away to find someone who could help her fill out the eligibility form in English. Finally, one of the interpreters employed by Home Affairs agreed to help her, but the interview was cut short when she started crying and her application was subsequently rejected. “I think because I didn’t have any money for them, they didn’t want to help me,” she said.

“The officers say, ‘Give me money, and I’ll give you refugee status'”

An interpreter who works at the refugee reception office in Pretoria – who asked not to be named – said these stories were typical. “The officers say, ‘Give me money, and I’ll give you refugee status,’” she told IRIN. “They’ll say they’ve lost a file, but if a bribe is found, they find the file.”

Several local refugee rights organizations have documented corruption at refugee reception offices. Eleven volunteers with People Against Suffering, Oppression and Poverty (PASSOP), who monitored the refugee reception office in Cape Town over a two-week period in 2011 all reported witnessing corrupt practices, including the payment of bribes to security guards to cut queues and the sale of fake documents by men working outside the office who appeared to have connections with officials inside.

The interpreter said a small minority of RSDOs “do their job properly”, and that, in the absence of a bribe, the outcome of an application depended mainly on the mood of the interviewer and which country the applicant was from. “If there’s no war in that country, they will reject the application no matter what the individual says.”

Backlog

David Cote of Lawyers for Human Rights, which provides legal services to asylum seekers in Johannesburg and Pretoria, confirmed that claimants are often pre-judged based on their country of origin. “You can tell from the decisions that a lot of it is ‘cut and paste’ and based on outdated country-of-origin information,” he told IRIN.

According to UNHCR’s deputy regional representative, Sergio Calle-Norena, RSDOs have access to REFWORLD, a UNHCR website with all the latest country-of-origin information. “If they don’t make use of that information, it could be lack of interest or lack of time,” he commented. “They have to process 10 interviews a day; you can’t get into detail in that time.”

An initial decision can be appealed but the backlog of cases and the limited capacity of the Refugee Appeal Board, which consists of four members, means that asylum seekers often wait up to five years for an appeal hearing. Tjerk Damstra, former acting chair of the board said that, at the time his term ended in 2012, only about 10 percent of decisions were reversed.

Although some asylum seekers have legal representation at the appeals stage, Cote said that RSDOs rarely allow any kind of representation during the initial status determination interview. Applicants who have recently arrived in the country are required to fill out an eligibility form in English, usually before receiving any information about the asylum process. According to Amit’s report, failure to include relevant details in one’s story on this form is often viewed as grounds for questioning the claimant’s credibility and rejecting their application.

The interpreter who spoke to IRIN said she often helped people fill out their eligibility forms but that there was a shortage of interpreters for some nationalities, particularly Somalis.

Calle-Norena says UNHCR has been engaging with the government about structural, operational and capacity problems in South Africa’s refugee status determination process, which emerged in an analysis the agency did last year. “In general, these problems were acknowledged by the government, but a discussion of corrective actions has yet to take place,” he told IRIN.

UNHCR has also offered technical advice and training for RSDOs, which the government has yet to accept. The agency limits its involvement in individual asylum cases to those facing critical protection risks or imminent deportation to a place where their life or freedom would be at risk. “We can only do [mandate determinations] in those cases,” said Calle-Norena, explaining that, as a signatory to the 1951 Refugee Convention, the South African government holds the primary responsibility for implementation while UNHCR can only provide a supervisory role.

HIGHLIGHTS

JOHANNESBURG, – Cases of excessive force being used to remove rejected asylum seekers have been documented in a number of European countries. But with the financial crisis eroding sympathy and tolerance for asylum seekers, there has been little public or political support for measures that would provide more humane approaches to removing those reluctant to accept an asylum rejection.

According to the UN Refugee Agency (UNHCR), the forced removal of failed asylum seekers “should be undertaken in a humane manner, with full respect for human rights and dignity, and that force, should it be necessary, [should] be proportional and undertaken in a manner consistent with human rights law”.

A directive on common standards and procedures for returning irregularly staying migrants, adopted by the European Parliament in 2008, included a provision requiring that member states implement an effective system for monitoring forced returns. According to a study funded by the European Commission, by 2011, the majority of European Union countries had such a system or were in the process of implementing one.

But the systems vary widely between countries, both in terms of who does the monitoring and what they monitor.

Inconsistent oversight

For example, in the Netherlands – where incidents of excessive force being used on deportees are rare, according to the Dutch Refugee Council – an independent commission oversees the entire forced return process and guidelines are in place for the allowed use of force.

In France, monitoring only occurs during the pre-return stage or if a return attempt “fails”, either because of a last-minute legal intervention or because the pilot or crew on a commercial flight refuse to take the returnee. In the latter case, the returnee is sent back to a detention centre where one of five NGOs contracted by the home affairs ministry has a presence.

Christophe Harrison, from one of the NGOs, France Terre d’Asile, told IRIN that these returnees regularly report excessive use of force by police escorts during attempted removals, but that it was difficult to know the real extent of the problem because “either they are effectively removed to their [home] country or they physically oppose their removal and are then often brought before a criminal judge, who usually condemns them to two to three months in prison.”

Lack of independent oversight is of particular concern when returns are conducted on charter flights carrying only deportees and their guards. Frontex, the EU’s joint-border agency, has made increasing use of charter flights to remove rejected asylum seekers from several different European countries.

“With the charter flights, the level of restraint is even higher than on the commercial flights, but there are no witnesses,” said Lisa Matthews, from the UK-based National Coalition of Anti-Deportation Campaigns.

Behind closed doors

In the UK, which carried out over 40,000 forced removals and voluntary returns in 2012, civil society and the media have been reporting for years on the excessive use of force by private security guards contracted by the UK Border Agency (UKBA). A 2008 report by two UK-based NGOs – Medical Justice and the National Coalition of Anti-Deportation Campaigns – and the law firm Birnberg Peirce & Partners documented nearly 300 cases of alleged assault during forced removals from the UK between 2004 and 2008. However, the UK opted out of the EU returns directive and has no monitoring system in place.

In 2010, Jimmy Mubenga, an Angolan asylum seeker who had lived in the UK with his family for 16 years, died while being restrained by guards during his removal. Witnesses on the flight said they heard Mubenga complaining that he could not breathe, but in July 2012 the Crown Prosecution Service ruled that there was insufficient evidence to prosecute the guards or their employer, G4S, a global security group.

A spokesperson with the UKBA said that members of Independent Monitoring Boards, which monitor the welfare of prisoners and immigration detainees, had observed a number of charter flights as part of a pilot exercise in 2012, but that “decisions have yet to be made about arrangements for this type of monitoring”.

Little has changed since Mubenga’s death, said Emma Mlotshwa of Medical Justice, which sends independent doctors to immigration detention centres to record injuries resulting from the allleged use of excessive force. “The death of Mubenga, we thought, would have some effect, but it hasn’t. It’s still something that’s happening pretty much behind closed doors,” she told IRIN.

The most common injuries Medical Justice’s doctors see are those related to the use of handcuffs, Mlotshwa said, but fractured bones and injuries consistent with the victim having his or her head pushed down between the knees – an unauthorized method of restraint that can result in suffocation – have also been documented.

“They held me in a position whereby I couldn’t move because I was handcuffed, and then started punching me all over my face and body”

Marius Betondi, an asylum seeker from Cameroon, said he was so badly beaten by guards working for the contractor Tascor (previously called Reliance) during a removal attempt in January 2013 that he needs reconstructive surgery to his face and has blurred vision in his left eye.

He told IRIN over the phone from the UK that he had put up no resistance before the assault began.

“They [the guards] took me to the back of the aircraft and put a big red curtain around me so passengers would not be able to see me. They held me in a position whereby I couldn’t move because I was handcuffed, and then started punching me all over my face and body. I started bleeding terribly, and I was screaming, crying, asking for help. They continued for about 30 minutes, then I went unconscious. When I regained consciousness, they continued punching me.”

Betondi was eventually taken off the plane and returned to an immigration detention facility, where the manager informed the police. A police investigation is ongoing, which is rare in such cases, Mlotshwa said.

The UKBA is also investigating Betondi’s allegations, according to its spokesperson, who said that “physical intervention… is only used as a last resort or to enforce removal where the person concerned is non-compliant.”

Mubenga’s death has focused attention on UKBA’s lack of a detailed, publically available policy on what level of physical intervention is appropriate on an aircraft.

“When we looked at what was available publicly, it was striking that there was nothing relating to aeroplanes,” said Emma Norton, a lawyer with Liberty, a UK-based human rights NGO, adding that policy was clearly designed for use with potentially violent prisoners rather than failed asylum seekers. She noted that private security guards carrying out removals often receive only five days of control-and-restraint training, which does not include techniques for use on an aircraft.

Liberty’s request for a judicial review of the restraint policy was rejected last month when it emerged that the Home Office was reviewing the policy and had contracted the National Offender Management Service to design a “bespoke” training package for UKBA and its private contractors. The UKBA spokesperson could not say when the new training guidelines would be implemented.

Ineffective complaints system

Most cases of excessive use of force come to light only when the removal fails. Even then, many victims do not have the opportunity to make a complaint. “When people are injured and the removal fails, removal directions may be sent again very quickly, before there’s time to get medical evidence, and while they are still weak from their injuries,” alleged Mlotshwa, of Medical Justice.

She said the complaints system in the UK is ineffective and lacks independence, as investigations are carried out by the Professional Standards Unit, a department of the Home Office. “Detainees are often not interviewed, CCTV footage goes missing, and injuries are often not photographed.”

UKBA’s spokesperson said “we take all complaints very seriously and ensure they’re investigated thoroughly and in a timely manner”, but Liberty’s Norton said none of the complaints her organization has assisted with have been upheld. For those who are successfully returned to their home countries, the obstacles are even greater.

Caroline Muchuma, from the Refugee Law Project (RLP) in Uganda, which provides legal and psycho-social assistance to deportees, said, “The vast majority of our clients report having been abused prior to or during deportation,” but many do not want to lodge a formal complaint or are unable to do so.

Some fear imprisonment and go into hiding after being returned; they may receive medical treatment only long after the fact, making documenting evidence of their injuries problematic.

Muchuma said RLP is still in discussions about how best to help clients who want to pursue legal redress. “There are questions about jurisdiction that need to be determined, among others.”

She added, “The use of excessive force is across the board, but many of our clients are from the UK.” RLP has compiled a report documenting abuses by escorts and plans to send it to the UKBA.